Getting Out of the Traffic Surcharge Trap

Lawmakers Could Finally Tackle Texas' Driver Responsibility Program

The road to responsible driving in Texas is paved with good intentions, but the well-meaning aims of the state’s Driver Responsibility Program (DRP) have left many Texans in the ditch.

“It has been nothing but a disaster. It has done nothing but trap the poor, put more people through our jail system and our court systems and add more cost to counties,” said Williamson County Justice of the Peace Edna Stoudt in a session at TAC’s 2016 Legislative Conference in August.

The program, which sets up a point system to track and improve driver behavior, hasn’t worked out as planned. It was designed to incentivize better driving, and also bring in much-needed money to help fund trauma centers, but the law has disproportionately affected the working poor in Texas, often trapping them in a cycle of surcharge fees and suspended licenses they can’t escape. And much of the funding promised to trauma care centers has never materialized.

About 1.5 million Texas drivers are implicated in the program. Critics point to its main enforcement mechanism, license suspensions, as largely ineffective as an incentive for debt collection. Since the program’s inception, approximately $3.9 billion has been assessed, but only $1.5 billion has been collected.

“In 2009, they collected about $170 million; in 2010, about $160 million — so the money is coming in, but only about half of it is being appropriated to trauma centers. A lot of it is held back to balance the state budget," said TAC Legislative Liaison Rick Thompson. “The Legislature did appropriate almost all of the funds last session, though, so we have to give them credit there.”

With about half of the surcharges that are assessed never being collected, and, historically, half of what is collected never making it to trauma centers — instead being held to balance the state budget — many have called for reform of the program over the years, if not outright scrapping it.

“This law is simply a bad law. It didn’t even do what it set out to do. When you were in school, if you got 50 percent of your answers or less right, what happened? That’s a failure. You got an F. It’s nothing to brag about, you need to start over. You need to fix it,” said Jack County Judge Mitchell Davenport.

Beyond being unpopular and ineffective, some criminal justice advocates fear the program’s unintended effect of trapping the working poor in a surcharge and license suspension cycle may draw the state into a lawsuit with the American Civil Liberties Union (ACLU) or similar groups.

A SNARE FOR THE WORKING POOR

“It’s this lower-income group — they’re struggling to make ends meet; they’ve lost their jobs, or they have menial jobs or health issues; they’re struggling to make their mortgage payments, their car payments, get their kids to school, buy food, put food on the table — those are the ones who are getting caught in this system over and over,” Judge Jean Spradling Hughes of Harris County Criminal Court No. 15 said.

Spradling Hughes says what happens is, a driver will get a ticket for something like a small moving violation, or an insurance policy that recently expired, and they’ll make a partial payment on their ticket. The problem is that the driver doesn’t realize they just entered into a system of surcharges for the next three years. If they miss one payment — something Spradling Hughes said she’s seen people miss in order to pay for basics like rent or food — that’s an automatic suspension of their license. That missed payment and license suspension puts them into a second cycle of surcharges, doubling their initial surcharge payments for three years.

“The problem is, every time you get a new ticket, there’s a whole new set of surcharges. I had a guy yesterday who was in a cycle of 12 different surcharges. He will never get out of them,” said Spradling Hughes.

Using the threat of license suspension as the stick that motivates payment hasn’t worked well. For the working poor in Texas. Generally, less than half of assessed fines are collected. Spradling Hughes says she sees drivers put in the position of choosing to put their limited resources towards paying surcharges and hanging on to their license, or getting insurance.

“If people are going to drive, I’d rather them be driving with insurance than just driving with nothing” said Spradling Hughes. “And if they’re trying to pay surcharges, they’ve got a decision to make. I tell them the driver’s license is no good unless you’ve got the insurance with it, but they just don’t get that. They can’t afford it, they’ve got to try to pay surcharges.”

Even the U.S. Department of Justice (USDoJ) thinks suspending a driver’s license as a debt collection tool is not likely to work, and where they have discretion to do so, the USDoJ has encouraged state and local courts to avoid suspending licenses as a debt collection tool, reserving suspensions for cases in which it will increase public safety.

License suspension can be valuable as an enforcement tool, but suspending licenses is often a counter-intuitive move when trying motivate drivers to repay debt. Driver’s licenses are critical to individuals’ ability to maintain a job, pursue educational opportunities and care for families. Also, suspending defendants’ licenses decreases the likelihood of resolving pending cases and outstanding court debts by both jeopardizing employment and making it more difficult to travel to court, resulting in more unlicensed driving.

The strain on courts and cost to county taxpayers adds up quickly, too.

“It backs up your jails, it backs up your prosecutors, many of them are indigent, so they’re going to be entitled to a court-appointed lawyer — the county’s going to pay for all of that. So, with this program — and its court costs, police costs, booking costs, jail costs, attorney’s fees — the county just spends money,” said Spradling Hughes.

When a county law enforcement arrests somebody for driving while their license is suspended, they’ve got to get booked and go to the county jail. The officer then has to file the office reports, and, by some estimates, that’s about nine hours of their on-duty time.

“It has a domino effect,” said Midland County Justice of the Peace David Cobos. “It’s backed up the docket. A lot of people get citations, a lot of officers will arrest somebody, so it has increased the number, especially after the second conviction when it becomes a Class B misdemeanor. So, the caseloads have increased in the county courts of law, the municipal courts and justice courts around the state, and it’s increased a jail population for these types of offenses.”

A LEGISLATIVE FIX​

The DRP is deeply unpopular now. Legislators on both sides of the aisle have compared the program to payday loan scams and debtors’ prison. The idea of making bad drivers fund trauma care has lost much of its shine, but the need for adequate financing of trauma care still exists.

The money the DRP brings in for hospitals has made the program hard to kill. Criminal justice advocates and hospital administrators — often allies on a variety of issues — have found themselves on opposing sides of what to do about the DRP in the past. Since the last legislative session though, the gap between the two sides has closed significantly.

TAC is leading a coalition this session, which includes the Texas Hospital Association, Teaching Hospitals of Texas and the County Judges and Commissioners Association of Texas, that is working towards a solution.

“We’re working to narrow down new funding sources that make sense, but basically everything’s on the table,” said Thompson, who is helping to lead TAC’s coalition during the legislative session.

The stakes for the state have gotten increasingly high as time goes on. From California to Florida, the ACLU and other civil liberties advocates have been suing states for similar laws that use driver’s license suspensions as a debt collection tool.

“We don’t want to see the state put in the position of having to defend a bad law they don’t even like,” Thompson said.

The ACLU contends that the states have failed to adequately consider debtors’ financial circumstances or determine the reasons for non-payment before suspending licenses. One suit in Virginia described the license suspensions as “severe and coercive” policies and a violation of the “fundamental principles of due process equal protection” afforded in the U.S. Constitution.

Staudt, who has been a justice of the peace for more than 20 years, says the program is probably unconstitutional. She says the surcharges levied on top of the criminal penalties ultimately punish drivers twice for the same violation.

“The whole premise is liberty in my mind,” Staudt said. “The driver’s license was never meant to be a liberty you could get only if you can afford to pay for it. You should only have your license taken — and only taken by a judge, because this should be handled by the judiciary, not a state agency — if you have been deemed dangerous on the road.”

In the first three weeks that legislators could prefile bills ahead of the 85th legislative session, they jumped on the opportunity to do something with the program. Of the five bills the Legislature is considering, two propose fundamental changes to surcharges, fines and fees, and three propose full repeal of the program.

“Part of the argument you’ll get when you go to the Legislature to testify is that this law was intended to increase public safety, make it safer on the roads, and we know it has had the absolute, total opposite effect,” Spradling Hughes said. “It makes roads less safe, and doesn’t bring in the money it promised anyway.”

If the program were repealed, trauma center funding would need to come from somewhere else. Spradling Hughes suggested one solution might be to raise fees elsewhere, but she’s not optimistic.

“Every time I’ve gone to the Legislatures, they tell me ‘find us $160 million,’ and I’ve thrown out every possible proposal you can imagine, but I always get hit back with ‘well, that’s a tax,’” she said.

Numerous legislative sessions have come and gone. Numerous legislators have declared they would fix or kill the DRP. This session seems to have more momentum than most, but if history is a guide, it’s usually the bill that dies, not the program.

Cobos, who spent many years as the legislative chair for the Justices of the Peace and Constables Association of Texas, is optimistic about the 85th legislative session.

“I think it may be different this session, because over the past three sessions there has been a lot of discussion about it and I think legislators now are aware of how people are getting hurt by it. They’re really thinking of alternatives now,” Cobos said.

Cobos does worry about the people currently caught up in the program if it is repealed. “What happens with their cases, their debts and everything else? Legislators need to take all of that into consideration when winding down the program,” he said.

RELIEF JUDGES CAN GRANT NOW

Judges don’t need to wait on the Legislature. When a person does land in court, and they face another conviction — which starts a whole new set of surcharges — judges can inquire about ability to pay and wave any new surcharges, according to Spradling Hughes. Passed in 2015, Rep. Drew Darby’s House Bill 7 gives judges the opportunity to break the surcharge cycle.

“I encourage you to use the waiver,” she said. “Even if a defendant is standing in front of me with a hired lawyer, I can find them indigent for purposes of surcharges. That bottom line on the order that goes to the Department of Public Safety (DPS) just says the defendant provided testimony that he’s indigent. You don’t have to explain to anyone why you’re waiving it, just check that box, sign it, and your clerk sends a form to DPS.”

The order cannot do anything about the past surcharges a driver has, but does prevent future ones. Defendants may also qualify to have their surcharges reduced.

“If I have a defendant who is really trying to get out of this rut,” said Spradling Hughes, “then I give them a packet we just copied from the DPS website. It tells them how to file an indigency affidavit, what forms they have to fill out, they can file it with DPS and at least get a reduction in surcharges.”

“I’ve had several people take advantage of [the DPS indigency affidavit], and some that are even grateful to the point that they start crying, because nobody’s worked with them in the past to try to resolve the issue and get them out of that cycle,” said Cobos of some of the drivers who’ve come through his Midland County courtroom.

He says he’s also had a lot of success working with drivers — sometimes in concert with the DPS affidavit — to defer and dismiss new charges when they prove they can take responsibility.

“This is something that I figured I can do on my own as a judge to help,” said Cobos.

Cobos said most of the people that he is able to help come to the counter to talk to the clerk and say “you know, I’ve got to do something. What can I do?” That’s when he gets involved. He’ll defer the new charge for up to six months, allowing the person time to get their surcharges up-to-date with DPS through regular surcharge payments or the indigency affidavit.

“I say, ‘okay, so instead of paying the $300 fine—because insurance is going to cost you less than that—take the $300 you’d pay for that fine and get insurance.’ I’d rather they spend their money getting compliant with the law, getting their license eligible and getting insurance.”

Cobos requires the drivers to bring in receipts to verify they are maintaining compliance during that six-month period. He also provides those with a suspended license an occupational license, allowing them to continue to get to and from work.

“If they comply, I’ll dismiss the charge, and they don’t get a conviction. Plus, no surcharge on top of that. If they continue on that path and pay off their surcharges, they’ll have no more problems,” Cobos said. “It breaks the cycle and that kind of gives them an edge to get out of that no man’s land.”

This small change to the DRP has eased some of the burden to some of the people caught in a cycle of suspended licenses and DPS surcharges, but county taxpayers are still paying. When a judge sees someone in court who is trying to take care of their responsibilities, normally the district attorney can reset the case, and if they can get insurance and get their license clear, the case can be dismissed.

“It still costs a ton of money. This person was arrested; this person was booked in jail; they probably had to get a court-appointed lawyer; and the county received no fees or court costs out of that case whatsoever. We just spent a lot of money to try to bring that person back into compliance. JPs I think still get a dismissal fee of anywhere between $10 and $100, but otherwise it does nothing but cost the taxpayers money to process these people,” Spradling Hughes said.

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